As part of the divorce process, you and your ex will have to find a way to divide the debts and assets of the marriage. There are two ways that this can be done, based on the laws of the state where you file for divorce—either through an equitable distribution of property or under community property laws. The majority of states, including New Jersey, apply the principle of equitable distribution to the division of the marital estate.
It’s important to understand, first of all, that “equitable” means “fair,” but not necessarily equal. Under the concept of equitable distribution, the court will look at a number of factors and try to structure a property settlement that treats each party fairly. Among the factors the court can consider are:
- The length of time the parties were married
- The age and physical health of both parties
- Any contribution made by one party to the education, training or earning power of the other party
- The extent to which either party deferred career goals to benefit the other party
- The standard of living to which the parties were accustomed during the marriage
- Any income or property brought to the marriage by either party
- The respective earning capacity and income of both parties
- Any written agreement, including a prenuptial or postnuptial agreement, regarding property distribution
- The tax implications of any distribution of property
- The economic circumstances of both parties at the time of divorce
- The need of a parent with custody of minor children to own or occupy the family home
While New Jersey law does not specifically include marital misconduct as a factor, the court may consider any other factors perceived to be relevant. It’s also important to understand that, while you can structure your own settlement, the court may still review the agreement to ensure that there’s no duress, undue influence or misrepresentation.
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